How to File a Lawsuit
Ernst Legal Education 101:
Knowledge is power. We are going to walk you through the basics of what happens when you file a lawsuit.
As an injured party, you can choose to file a lawsuit. Everyone worries about the country being lawsuit prone- but there are less lawsuits today than there were 20 years ago. Why? The insurance lobbying effort over the last 20 years has been designed to create this public idea, and reduce their exposure.
When you file a lawsuit in a civil case, you are asking the court to resolve a dispute that cannot be resolved easily. When you decide to file a lawsuit, you or your lawyer files a “complaint.” This complaint is filed with the court and identifies who you are suing, the basis for your lawsuit, and the court where the lawsuit is filed. The court staff then opens a file for your case and issues you a case number.
A lawsuit has a limited amount of time to be filed. This is known among lawyers as the “Statute of Limitations.” When you run out of time to file a lawsuit, it is referred to as the Statute of Limitations expiring. After this time passes you generally cannot file a lawsuit.
The lengths of time for several common types of actions in California are as follows:
- Personal Injury or Wrongful Death: 2 years. (CCP §335.1)
- Damage to Personal Property: 3 years (CCP §338)
- Breach of a Written Contract: 4 years (CCP §337)
- Breach of an Oral Contract: 2 years (CCP§339)
- Claims Against Government Entity: 6 months
- Medical Malpractice: 1 year
Determining when the time limit starts can be far from simple. We would recommend you contact an attorney before the deadline gets close. When the deadline gets too close, attorneys feel unnecessary pressure because of the limited time frame.
Government Entity Restrictions:
If the defendant is a government agency, government employee, or some type of government owned entity, they are generally immune to lawsuits that seek damages. The ways around this require the government to waive this immunity if a lawsuit is particularly appropriate. To get this waiver, a plaintiff must file an appropriate claim under the California Government Claims Act. Generally it is six months or less to file this claim.
Where can the lawsuit be filed?
The lawsuit can be filed in a number of different locations. As the plaintiff, you get to select where you want your case to be heard.
- The county where the real property (land) that is the subject of the lawsuit. (CCP §392)
- The county where the accident or other wrongdoing that is the target of the lawsuit took place (CCP §393)
- The county where any defendant lives at the time the lawsuit is filed. (CCP §395)
- The county where the contract that is the target of the lawsuit was to be performed (CCP §393) or (note: a contract can specific where a suit must be filed)
- The county where the defendant corporation is registered or has its principle place of business. (CCP §395.5)
Preparing the Complaint:
A lawsuit begins when the plaintiff files three forms with the court. The plaintiff files a Civil Case Cover Sheet, a Summons, and a Complaint. The Case Cover Sheet and Summons are mandatory civil forms, while the Complaint may be filed by a Judicial Council Form or a pleading paper.
Every lawsuit must state facts that would allow the court to award judgment to the plaintiff under at least one “theory” or “cause of action” that is recognized in California. Most complaints have more than 1 cause of action.
Fill–in–the–blanks forms are available for filing several types of common lawsuits:
- Civil Case Cover Sheet (form CM-010)
- Summons (form SUM-100)
- Complaint- Contract (form PLD-C-001)
- Complaint- Personal Injury, Property Damage, Wrongful Death (form PLD-PI-001)
- Cause of Action- Breach of Contract (form PLD-C-001(1))
- Cause of Action- Common Counts (form PLD-C-001(2))
- Cause of Action- Fraud (form PLD-C-001(3))
- Cause of Action- Motor Vehicle (form PLD-PI-001(1))
- Cause of Action- General Negligence (form PLD-PI-001(2))
- Cause of Action- Intentional Tort (form PLD-PI-001(3))
- Cause of Action- Premises Liability (form PLD-PI-001(4))
- Cause of Action- Products Liability (form PLD-PI-001(5))
- Exemplary Damages Attachment (form PLD-PI-001(6))
- Declaration (form MC-030), typically used for the CCP §396a declaration
Copying and Filing the Complaint:
The last step toward filing a lawsuit is a filing fee. This fee is usually a few hundred dollars. This fee can be waived if a “fee-waiver” is allowed for your specific situation.
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